Peggy A. Burns, Esq.

The first mock trial experience we conducted at the 2000 Western Region Conference was a great way for transportation administrators to explore issues concerning their decision-making responsibilities. (See September, 2000 STN) Certainly the bus stop selection questions presented by the Arizona case we ""tried" are significant. Despite the fact that the Reno audience was nearly unanimous in its support of the school district in this case, the trial format provided an opportunity for conference participants to consider both positions concerning the issue of whether a particular bus stop is safe.

The many cases considered in state courts during the last twenty years confirm that bus stop safety has been widely litigated. A number of cases address harm which befalls students before they get on the bus, or after they disembark. In all these cases, the school district becomes a named defendant. The cases arise when students are injured when crossing a street to catch a bus, when dismounting from the school bus, as a result of sexual molestation or attack at the bus stop, or when a student is hurt on the way home from a purportedly safe stop. I am currently involved in a case concerning the safety of a stop for a student with disabilities. In a later article, I'll discuss cases that arise when drivers, rather than transportation directors, are in a position, arguably, to prevent injury. Some recent cases have important implications for avoiding liability for "off the bus" accidents.

New bus stop safety case
A July 2000 case decided in Connecticut gives valuable insight into preparing to defend against allegations that a bus stop is hazardous. In Murphy V. State of Connecticut, State Department of Education, Lina Murphy's children were assigned to a bus stop that Ms. Murphy considered to be unsafe. The Court's opinion does not reflect that children had been injured in connection with the stop, but Ms. Murphy pointed to the absence of paved shoulders and sidewalks, and the presence in the neighborhood of a registered sex offender, in trying to convince the board of education that a bus stop should be created in front of her house. The board of education stuck to its guns, and Ms. Murphy appealed to the Connecticut State Department of Education. Despite the conclusions of a state trooper that the bus stop should be moved closer to the Murphy residence, the Department of Education upheld the school board's denial of Ms. Murphy's request. The next appeal was to a judge.

Ms. Murphy lost her appeal to the Superior Court, Judicial District of New Britain. How did the school district prevail, when State Trooper Jay Festa, following a month-long study, recommended moving the bus stop? While considering Festa's recommendation, the Department gave weight to Festa's conclusions that the overall traffic conditions were safe and that drivers generally obeyed the twenty-five miles per hour speed limit. These conclusions were supported and supplemented by the Superintendent of Schools' statements regarding the safety of the walk area, and twenty-five photographs of the street and the children's pathway, which ran from their home directly to the bus stop. In addition, a bus company official indicated that visibility was not a problem, and the record contained no report of any automobile accidents along the route in question.

The Court also upheld the State Department's finding that although a registered sex offender lived in the area, there was nothing in the record to suggest that this individual was anywhere near the children's route. In short, the transportation department had done its homework. What can you learn from this case? Be sure you respond to specific complaints from parents. That's not to say you must always defer to parents' wishes. But there's no question that hearing officers, judges, and juries will respond predictably in favor of parents if they testify convincingly that the transportation department failed to so much as return their calls. Disagreement is one thing; ignoring parental concerns is another. They won't go away.

A transportation director embroiled in a bus stop conflict must examine police reports, visit the scene, take photographs, and, generally, gather all available information. It is good practice, if conflict arises, to have an expert render a report about his or her determinations about the sop and surrounding area. When complaints are from parents of a special education student, you'll also want to address the issue of bus stop safety in connection with the child's specific disability. Does a child with cerebral palsy whose gait is unsteady have to walk down an icy path in winter to get to the bus stop? Does a cognitively impaired child who can't appreciate dangers have to pass by an area in which suspicious characters hang out before getting to her assigned stop?

If the issue has to do with the presence of a dangerous someone in the area - like a registered sex offender - you'll thoroughly inquire of appropriate governmental agencies before you take too strong a stand. What can you reasonably predict about the possibility of this individual's coming into contact with students? Who will support you in your position? What factors suggest that the children's safety could, in fact, be compromised?

Be sure to take these steps before serious conflict arises:

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• Document parent complaints. Who called? To whom did they speak? When? What about? If their message needed to be relayed to someone else, like the transportation director or school principal, was it?

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• Establish and follow existing rules and regulations for establishment of bus stops. Is there a policy which authorized the transportation director to decide on bus stops? Are there factors determined by school district policy that the director must follow? Does state law or regulations speak to the issue?

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• Investigate proposed options for bus stop selection, and note your rationale. Consider the ages of the children on the route. Document the factors you considered. Did you pass up the parents' choice for a stop in favor of another? Why? Have you appropriately balanced student safety against real, verifiable, cost?

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• Communicate your rationale to parents. Let them know why you've gone one way rather than another.

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• Urge parents through school newsletters and transportation department communications to reinforce safe behavior by children walking to and from bus stops. Parents must be partners in achieving a safe walk for kids.

Peggy Burns is staff counsel for Adams Twelve Five Star Schools in Northglenn, Colorado and consultant with Education Compliance Grouo, Inc. She can be reached at (303) 604-6142.

This article first appeared in the November 2000 edition of School Transportation News